Your property rights enjoyed a major victory when the Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) announced in late June they would rescind the onerous Waters of the U.S. (WOTUS) rule imposed by the Obama administration. Their announcement followed President Donald Trump’s February executive order directing a review of the rule. 

The controversial WOTUS rule was billed as a fix to the Supreme Court’s direction to develop a rule to define waters falling under the jurisdiction of the EPA and Corps via the Clean Water Act. That act, enacted in 1972, gave EPA and the Corps authority to control pollution in navigable waters of the U. S. The term “navigable waters” was not defined by legislation, and the federal agencies broadened their interpretation of the phrase over time. 

Win for Landowners
Michigan landowner John Rapanos objected to the agencies’ ever-broadening interpretation when the Corps denied him permits to build on his land. Rapanos won at the Supreme Court in a 5-4 vote (see our July 6, 2006, issue).

Writing for the majority, Justice Antonin Scalia called the Corps “enlightened despots.” He said the Corps’ definition of navigable waters had grown to include “storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands covered by floodwaters once every 100 years.” He pointed out that Rapanos’ land lay “11 to 20 miles away” from “the nearest body of navigable water.”

Normally, the decision would have ended the regulatory creep. But that did not occur because of Justice Anthony Kennedy. He joined with the majority opinion but offered a different opinion for doing so.

Legal experts tell us the Scalia opinion is the “controlling opinion” and that Kennedy’s opinion is a “concurring opinion,” which has no legal standing. In his opinion, Kennedy introduced the possibility of a “significant nexus” test. The agencies seized “significant nexus” as orders to develop their WOTUS rule. The rule was enacted in 2015 over strenuous objections from agriculture, construction, mining, energy and other business and industry groups.

WOTUS hasn’t been implemented because the Sixth Circuit Court of the U.S. issued a stay on the application of the rule nationwide the day before it was to take effect.

Both agencies have reversed direction. On June 27, they announced they will undertake a two-step rule-making process:

1. The 2015 rule will be rescinded, returning regulatory language to the way it read before the rule arrived.

2. The definition of “waters of the U.S.” will be re-evaluated and revised.

Revised Definitions
Both the EPA and Corps have direction from the executive order to define “navigable waters” in a manner consistent with Justice Scalia’s majority opinion in the Rapanos ruling. Scalia limited the jurisdiction of the Clean Water Act to “relatively permanent, standing or continuously flowing bodies of water that were continuously connected on the surface.”

Hopefully, this will end the threat of loss of landowner property rights that existed under the WOTUS rule developed by the Obama administration. That rule, if allowed to exist, would have essentially frozen nearly all land in current use in place at the time of implementation, says ag land attorney Judon Fambrough, now retired from the Real Estate Center at Texas A&M University (see our May 12, 2016, issue).

He also notes the revised definition of WOTUS by the Obama administration’s EPA and the Corps would have required landowners wishing to make any change in the way they use their land to file for a permit. He says that process could have taken up to three years and cost an estimated $250,000 to obtain.

Aggressive environmental groups will no doubt stall the current rule rewrite and implementation with rounds of lawsuits.

Although it is difficult to predict how courts will rule, Justice Kennedy might not prove as supportive to his concept of significant nexus as hinted in his 2006 concurring opinion, which started this 11-year debacle. That indication came this past spring, when he called the Clean Water Act “arguably unconstitutionally vague,” during oral arguments in a case about when a landowner may challenge the water-permitting process.

Editor’s Note: For 45 years, Mike Walsten covered business trends in agriculture and the land market. Today he serves as a contributor for LandOwner, since retiring from the editor role. Subscribe to LandOwner Newsletter, a must-have resource for both farmers and landlords.